2012 (6) TMI 6 - HC - Customs

Exemption Notification - categorization - duty free import of medical diagnostic equipment - Petitioner failed to fulfil the continuous obligation authority has proceeded to reject the application for re-categorization in category 1 instead of category 2 for the reason that the Petitioner had initially been categorized in category 2 - Deputy Director General has observed that the Petitioner has never been approved as a charitable hospital either by the DGHS or the Union Ministry of Health and Family Welfare Held that - Petitioner falls within the description of a hospital run or substantially aided by a charitable organization. Having regard to the fact that the Petitioner has been registered as a Public Charitable Trust under the Bombay Public Trusts Act, 1950 since 1953 and also holds an exemption under Section 80G of the Income Tax Act, 1961, ground on which the Application for change in categorization was rejected by the Deputy Director General, is ex facie contrary to the law as expounded by the Supreme Court. circumstance that the notification dated 1st March 1988 had come to an end cannot be a ground to reject the plea for re-categorization. Petition allowed by setting aside the impugned order. Deputy Director General shall reconsider the Application submitted by the Petitioner for re-categorization under category 1

Issues Involved:
1. Non-fulfillment of continuous obligation of free treatment.
2. Cancellation of Customs Duty Exemption Certificates (CDECs).
3. Rejection of re-categorization application under category 1 of the exemption notification.

Detailed Analysis:

1. Non-fulfillment of Continuous Obligation of Free Treatment
The Petitioner, a multi-specialty hospital registered as a Public Charitable Trust, imported diagnostic equipment under a customs duty exemption (Notification 64/88-Cus) which required compliance with specific conditions. It was alleged that the Petitioner failed to fulfill the "continuous obligation of free treatment" as stipulated in the exemption notification. The hospital was initially categorized under category 2, which mandated providing free treatment to at least 40% of outdoor patients and all indoor patients from families earning less than Rs. 500 per month, with 10% of hospital beds reserved for such patients. The failure to meet these conditions led to the withdrawal of the exemption benefits.

2. Cancellation of Customs Duty Exemption Certificates (CDECs)
The CDECs granted to the Petitioner were canceled by the Deputy Director General of the Directorate General of Health Services (DGHS) on 2nd February 2001. This cancellation was challenged by the Petitioner in writ proceedings, and the Division Bench of the High Court set aside the cancellation on 26th November 2008 due to a breach of natural justice, allowing the authority to reissue a show cause notice and pass a fresh order. Upon reconsideration, the Deputy Director General reaffirmed the cancellation on 15th October 2009, citing non-compliance with the free treatment obligation.

3. Rejection of Re-categorization Application under Category 1
The Petitioner sought re-categorization under category 1 of the exemption notification, which is more beneficial, as it is meant for hospitals run or substantially aided by charitable organizations approved by the Ministry of Health and Family Welfare. The application for re-categorization was rejected on the grounds that the Petitioner had initially been categorized under category 2 and had not applied for or been approved as a charitable hospital under category 1. The Petitioner argued that the rejection was erroneous, citing the Supreme Court judgment in Share Medical Care v. Union of India, which held that an applicant could seek a more beneficial categorization even if initially categorized differently.

Court's Findings and Judgment:
The Court found that the Petitioner had not accepted the cancellation of the CDECs and had actively challenged it, keeping the issue of categorization alive. The Supreme Court in its judgment dated 8th April 2009 distinguished the present case from the Jaslok Hospital case, noting that the Petitioner had not accepted the cancellation and had sought re-categorization while the issue was still live.

The Court also referred to the Supreme Court's decision in Share Medical Care, which established that an applicant could seek re-categorization to a more beneficial category even if initially categorized under a different one. The Court held that the Deputy Director General's rejection of the re-categorization application based on the initial categorization was legally unsustainable.

The High Court concluded that the Petitioner, being a registered Public Charitable Trust since 1953 and holding an exemption under Section 80G of the Income Tax Act, 1961, could not be precluded from seeking re-categorization under category 1. The Court set aside the impugned order dated 15th October 2009 and directed the Deputy Director General to reconsider the application for re-categorization under category 1 within three months, in accordance with the law and the directions issued.

Conclusion:
The Petition was allowed, setting aside the Deputy Director General's order, and the matter was remanded for reconsideration of the re-categorization application under category 1, with a directive to take a final decision within three months. The rule was made absolute with no order as to costs.

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